Typically, employers desire to maintain the confidentiality of a workplace investigation, to protect both the integrity of the investigation and the privacy of the individuals involved in the investigation. However, both the Equal Employment Opportunity Commission ("EEOC") and the National Labor Relations Board ("NLRB") have recently taken the position that it may be unlawful for employers to require, or even request, that certain employees involved in workplace investigations maintain the confidentiality of the investigations.

The NLRB was the first to opine on this issue in its July 30, 2012 Banner Estrella Medical Center decision, which held that a company's standard and non-discretionary procedure of having its workplace investigator ask complaining employees not to discuss the investigation while it was pending violated the National Labor Relations Act. The NLRB determined that this blanket rule was an unlawful restraint on the rights of employees to, among other things, discuss the terms and conditions of their employment. On the other hand, the NLRB suggested that if the employer performed an individualized assessment as to whether witnesses needed protection, evidence was in danger of being destroyed, witness testimony was in danger of being fabricated or there was a need to prevent a cover up, a request for confidentiality during the investigation may not violate the law.

A few days later, a regional office of the EEOC informed an employer that its practice of warning employees involved in a harassment investigation that they could be subject to discipline or discharge for discussing the investigation is unlawful. The EEOC stated: "An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is ‘flagrant' not trivial." The EEOC further stated that such a policy was a violation of Title VII, even if there was otherwise no adverse action (i.e., a violation may be found regardless of whether any employee was disciplined pursuant to the policy).

These rulings are troublesome, in that they place employers in the difficult situation of balancing the interests in preserving the integrity of the investigation and the privacy rights of those involved against the employees' rights to discuss the workplace investigation and any alleged unlawful activity. At a minimum, employers should review their investigation policies and procedures with counsel to ensure that blanket mandates that prohibit disclosure of the investigation are "modified" in a manner consistent with these rulings.